STATE OF NEW YORK

________________________________________________________________________

99--A
Cal. No. 699

2023-2024 Regular Sessions

IN SENATE
(Prefiled)

January 4, 2023
___________

Introduced by Sens. GOUNARDES, ADDABBO, HOYLMAN-SIGAL, JACKSON, MYRIE,

RAMOS, RIVERA, SALAZAR, THOMAS -- read twice and ordered printed, and
when printed to be committed to the Committee on Labor -- recommitted
to the Committee on Labor in accordance with Senate Rule 6, sec. 8 --
reported favorably from said committee, ordered to first and second
report, ordered to a third reading, amended and ordered reprinted,
retaining its place in the order of third reading

AN ACT to amend the labor law, in relation to employee access to person-

nel records

The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:

1 Section 1. The labor law is amended by adding a new section 210-b to

2 read as follows:
3 § 210-b. Access to personnel records. 1. As used in this section, the
4 following terms shall, unless the context clearly requires otherwise,
5 have the following meanings:
6 (a) "Employee" means a person currently employed or formerly employed
7 by an employer.
8 (b) "Employer" means any individual, corporation, partnership, labor
9 organization, unincorporated association or any other legal business,
10 including any governmental entity or public employer as defined in para-
11 graph (a) of subdivision six of section two hundred one of the civil
12 service law, and any commercial entity, including agents of such employ-
13 er.
14 (c) "Personnel record" means a record kept by an employer that identi-
15 fies an employee, to the extent that the record is used or has been
16 used, or may affect or be used relative to that employee's qualifica-
17 tions for employment, promotion, transfer, additional compensation or
18 disciplinary action. A personnel record shall include a record in the
19 possession of a person, corporation, partnership or other association

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.
LBD01556-06-4
S. 99--A 2

1 that has a contractual agreement with the employer to keep or supply a

2 personnel record as provided in this section. A personnel record shall
3 not include information of a personal nature about a person other than
4 the employee if disclosure of the information would constitute a clearly
5 unwarranted invasion of such other person's privacy. Without limiting
6 the applicability or generality of the foregoing, all of the following
7 written information or documents to the extent prepared by an employer
8 regarding an employee shall be included in the personnel record for that
9 employee: the name, address, date of birth, job title and description;
10 rate of pay and any other compensation paid to the employee; starting
11 date of employment; the job application of the employee; resumes or
12 other forms of employment inquiry submitted to the employer in response
13 to his advertisement by the employee; all employee performance evalu-
14 ations, including but not limited to, employee evaluation documents;
15 written warnings of substandard performance; lists of probationary peri-
16 ods; waivers signed by the employee; copies of dated termination
17 notices; any other documents relating to disciplinary action regarding
18 the employee. A personnel record shall be maintained in typewritten or
19 printed form or may be handwritten in indelible ink.
20 2. An employer shall notify an employee within ten days of the employ-
21 er placing in the employee's personnel record any information to the
22 extent that the information is, has been used or may be used, to nega-
23 tively affect the employee's qualification for employment, promotion,
24 transfer, additional compensation or the possibility that the employee
25 will be subject to disciplinary action. An employer receiving a written
26 request from an employee to access such employee's personnel record
27 shall provide the employee with a copy of such personnel record, at no
28 cost to the employee, within five business days of submission of a writ-
29 ten request for such copy to the employer. An employer shall not be
30 required to allow an employee to review the employee's personnel record
31 on more than two separate occasions in a calendar year; provided, howev-
32 er, that the notification and review caused by the placing of negative
33 information in the personnel record shall not be deemed to be one of the
34 two annually permitted reviews.
35 3. If there is a disagreement with any information contained in a
36 personnel record, removal or correction of such information may be mutu-
37 ally agreed upon by the employer and the employee. If an agreement is
38 not reached, the employee may submit a written statement explaining the
39 employee's position which shall be contained and become a part of such
40 employee's personnel record. The statement shall be included when said
41 information is transmitted to a third party as long as the original
42 information is retained as part of the file. If an employer places any
43 information in a personnel record which such employer knew or should
44 have known to be false, the employee shall have remedy through the
45 collective bargaining agreement, other personnel procedures or judicial
46 process to have such information expunged. An employee may bring an
47 action in a court of competent jurisdiction to have false information
48 removed from such employee's personnel record. The provisions of this
49 section shall not prohibit the removal of information contained in a
50 personnel record upon mutual agreement of the employer and employee for
51 any reason.
52 4. An employer shall retain the complete personnel record of any
53 employee as required to be kept under this section without deletions or
54 expungement of information from the date of employment of such employee
55 to a date three years after the termination of employment of the employ-
56 ee with such employer. In any cause of action brought by an employee
S. 99--A 3

1 against such employer in any administrative or judicial proceeding such

2 employer shall retain any personnel record required to be kept under
3 this section which is relevant to such action until the final disposi-
4 tion thereof.
5 5. If an employer elects to have a written personnel policy regarding
6 the terms and conditions of employment, such personnel policy, as the
7 same may be amended from time to time, shall be continuously maintained
8 at the office of such employer where personnel matters are administered.
9 6. Nothing in this section shall be construed to supersede the terms
10 of a collective bargaining agreement, provided, however, that such
11 agreement provides at least substantially similar access by an employee
12 to their personnel records as that provided by this section.
13 7. Any violation of this section by an employer or any other person
14 shall be punished by a fine of not less than five hundred nor more than
15 twenty-five hundred dollars. This section shall be enforced by the
16 attorney general.
17 8. No employer or any other person shall discharge, threaten, penal-
18 ize, or in any other manner discriminate or retaliate against any
19 employee who exercises such employee's rights under this section. As
20 used in this section, to threaten, penalize, or in any other manner
21 discriminate or retaliate against an employee includes, but is not
22 limited to, threatening to contact or contacting United States immi-
23 gration authorities or otherwise reporting or threatening to report an
24 employee's suspected citizenship or immigration status or the suspected
25 citizenship or immigration status of an employee's family or household
26 member, as defined in subdivision two of section four hundred fifty-
27 nine-a of the social services law, to a federal, state or local agency.
28 9. An employee may bring a civil action in a court of competent juris-
29 diction against any employer or persons alleged to have discriminated or
30 retaliated against such employee for the exercise of such employee's
31 rights under this section. The court shall have jurisdiction to restrain
32 violations of this section, within two years of such violation, regard-
33 less of the dates of employment of the employee, and to order all appro-
34 priate relief, including: enjoining the conduct of any person or employ-
35 er; ordering payment of liquidated damages, costs, and reasonable
36 attorneys' fees to the employee by the person or entity in violation;
37 and, where the person or entity in violation is an employer, ordering
38 rehiring or reinstatement of the employee to his or her former position
39 with restoration of seniority or an award of front pay in lieu of rein-
40 statement, and an award of lost compensation and damages (including, but
41 not limited to, compensatory and punitive damages), costs and reasonable
42 attorneys' fees. Liquidated damages shall be calculated as an amount not
43 more than twenty thousand dollars. The court shall award liquidated
44 damages to every employee aggrieved under this section, in addition to
45 any other remedies permitted by this section.
46 10. At or before the commencement of any action under this section,
47 notice thereof shall be served upon the attorney general by the employ-
48 ee.
49 § 2. This act shall take effect on the sixtieth day after it shall
50 have become a law. Effective immediately, the addition, amendment,
51 and/or repeal of any rule or regulation necessary for the implementation
52 of this act on its effective date are authorized to be made and
53 completed on or before such effective date.